Judgment · High Court

Mr. Chaliha, learned senior counsel appearing for the appellant submitted catego rically that there is no iota of evidence to show that the vehicle (Tata Sumo) a s driven by the deceased was at any point of time negligent or contributed to th e accident rather the overwhelming evidence demonstrates that the other vehicle (mini bus vehicle) was entirely responsible for the said accident. Mr. Chaliha, learned senior counsel made reference to the deposition of the CW-2, who was the eye witness to the accident and contended that one mini bus vehicle was respons ible for the said accident. The Tata Sumo was being driven in a very cautious ma nner and in the controllable speed. Apart that, he had referred to the G.D entry that was lodged immediately after the accident by one Sub-Inspector namely, A. Gaffur where it is found that the bus vehicle knocked down the Tata Sumo vehicle coming from the opposite side. It is not an ordinary head on collision but it i s an accident caused solely by the bus vehicle dashing the Tata Sumo, which was not negligent at any point of time, Mr. Chaliha, learned senior counsel continue d to submit before this Court. On the other hand, Mr. A. Phukan, learned counsel appearing for the respondent N o. 2 quite emphatically submitted that if the principle of res ipsa loquitor is allowed to have its sway, it would be apparent from the accident itself that unl ess there were contributory negligence such accident could not have taken place. It is well settled that when there is definite evidence to prove a fact that ha s been pleaded there is no room for the principle of res ipsa loquitor. For appreciation of the submissions of the learned counsel appearing for the par ties as well as on a deeper scrutiny of the records, this Court is of the opinio n that the bus vehicle entirely contributed to the said accident for its neglige nt driving. As such the finding of the Tribunal that both the vehicles were lock ed in a head on collision and they are equally responsible for the accident is i nterfered with and set aside. The direction that out of the total compensation as assessed at Rs. 2,93,000/- t he respondent No. 2 is liable to pay 50% of the award i.e. Rs. 1,46,500/- is als o interfered with. Instead thereof, the respondent No. 2, New India Insurance Co . Ltd., shall pay the entire awarded sum i.e. Rs. 2,93,000/- with interest @ 6% per annum from the date of filing of the claim petition till the payment is made in the Tribunal on deducting the sum, if any, already has been paid. For the reasons as aforesaid, the appeal stands allowed to the extent as indicat ed above. There shall be no order as to costs. Send down the LCRs forthwith.